England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		17 July 2007

1. MR JUSTICE COLLINS: This is an appeal against a decision of District Judge Evans, sitting at the City and Westminster Magistrates' Court, whereby, on 4 June 2007, he ordered the extradition of the appellant to appear at the High Court, Boulogne sur Mer.
2. The appeal is based upon three grounds. There was a preliminary point, namely whether the appeal notice had been served upon the Crown Prosecution Service (CPS). There are strict rules that are contained in the statutory provisions applying the relevant rules of court which require service within a very short time. Fortunately we have not had to deal with that matter because it has been accepted by the CPS that the notice was properly put into the post, and albeit the CPS now have no record of its receipt they accept that the appellant's advisers complied with the rules. We, therefore, only have to consider the merits of the appeal itself.
3. The case against the appellant arises out of his involvement in an enterprise involving the smuggling of cigarettes from the Continent, probably obtained in Luxembourg, into this country. He was prosecuted in this country, there being alleged against him a conspiracy to import the tobacco between January 2002 and 10 May, the date he was arrested. There was also a charge relating to an importation on that day. He was, in due course, acquitted of the charge of conspiracy but convicted on the substantive offence. That indictment arose as a result of observations that were kept by officers of Customs and Excise upon the movement of lorries and other vehicles and the presence of the appellant when the smuggling of the cigarettes took place and they were eventually distributed. That is material because the offences against him in Boulogne arose out of a similar enterprise but dealt with it at the French end, as it were, because the French were not directly concerned with the smuggling into the United Kingdom as that was an offence against the United Kingdom revenue authorities and not against the French revenue authorities.
4. What concerned the French was that in the course of obtaining the cigarettes and recruiting individuals in France to obtain them, there were supplied by the organisation in this country - headed, it was said, by the appellant - stolen motor cars and stolen credit cards which were then used in France and possibly elsewhere on the Continent. It was the charges relating to the stolen cars and their use and the stolen credit cards and their use that were before the court in Boulogne.
5. The offence in this country was committed on 10 May 2002, the conspiracy was alleged to have existed between 1 January and 11 May 2002. The appellant was arrested and, it would appear, remanded in custody. He was convicted on 5 June 2003 of the single offence. He was then sentenced to 4 years' imprisonment. He appealed against that sentence and it was varied on appeal on 16 July 2003 to one of two-and-a-half years' imprisonment.
6. The offences in France for which the extradition is sought were committed between September 2001 and December 2001. A warrant for the appellant's arrest was issued on 30 May 2002. He was committed for trial at the Boulogne court in November 2002. The trial took place in his absence in Boulogne at almost the same time as the trial was taking place in this country. He was convicted on 12 June 2003 and sentenced to 6 years' imprisonment and a fine of €75,000. He was thereafter unlawfully at large so far as the Boulogne court was concerned.
7. On 27 July 2004 the European arrest warrant system came into force between France and the United Kingdom. On 21 August 2004 a European arrest warrant was issued by the Public Prosecutor of Boulogne. It appears - although we do not have any details - that that warrant was defective. Certainly it was not accepted by the authorities here. A subsequent warrant, which was accepted, was issued on 30 September 2005. It then took the relevant body in this country, that is to say the Serious Organised Crime Agency, until 26 January 2007 to issue the necessary certificate in accordance with Section 2 (7) of the Extradition Act 2003 which enabled the appellant to be arrested and taken before the Magistrates' Court for the purpose of extradition.
8. We have had no explanation for the delay by the Serious Organised Crime Agency. For my part, I am concerned that there should be such a delay which, on the face of it, is entirely inexcusable. I hope that whoever was responsible for dealing with these matters takes note of that and there is, in future, speedy action taken on these arrest warrants. After all, it is not as if this was a particularly complicated case so far as the warrant was concerned.
9. Before I go into the facts of the matter in any more detail so far as necessary, it is convenient to refer to the relevant statutory provisions which are contained in the Extradition Act 2003. We are concerned in this case with Part I which is extradition to category 1 territories, France being one such. Putting it very broadly, the purpose of this Part of the Act dealing with category 1 territories which cover the European Union is that there should be speedy extradition from one state to another without the need for the state seeking extradition to produce the necessary evidence to show that there is a reasonable prospect of conviction. All that is necessary is for it to show that the conduct which should be specified in the warrant is conduct which would amount to an offence if it took place in the United Kingdom. That is a very broad indication of what lies behind Part I. I do not think it necessary to go into further detail.
10. Section 7 deals with the initial hearing and requires the judge before whom the person whose extradition is sought is brought to decide, among other things, whether he is the person in respect of whom the warrant was issued and then, if so, the procedure starts. Section 9 deals with the hearing itself. We come to Section 10 which is headed The Initial Stage of Extradition Hearing. That requires the judge to decide whether the offence specified in the Part I warrant is an extradition offence. Section 65 sets out how it should be decided whether an offence is an extradition offence. There are a number of different situations which are covered in Section 65. The relevant one for our purposes is Section 65 (3) which provides:

"The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied -

(a) the conduct occurs in the category 1 territory;

(b) the conduct would constitute an offence under the law of a relevant part of the United Kingdom if it occurred in that part of the United Kingdom; and

(c) it carries a sentence of imprisonment of at least four months."

11. It is clear from the decision of the House of Lords in Office of the King's Prosecutor, Brussels v Cando Armas [2005] UKHL 67 that it suffices that part of the conduct took place in the category 1 territory. It is not necessary that the whole of the conduct occurred in that territory.
12. One goes back to Section 11 which sets out various bars to extradition. So far as material, Section 11 (1) provides:

"If the judge is required to proceed under this section he must decide whether the person's extradition to a category 1 territory is barred by reason of -

(a) the rule against double jeopardy;

.....

(c) the passage of time."

13. In deciding whether the extradition would offend the rule against double jeopardy, Section 12 provides:

"A person's extradition to a category 1 territory is barred by reason of the rule against double jeopardy if, and only if, it appears that he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction on the assumption -

(a) that the conduct constituting the extradition offence constituted an offence in the part of the United Kingdom where the judge exercises jurisdiction;

(b) that the person was charged with the extradition offence in that part of the United Kingdom."

14. Finally so far as the statutory provisions are concerned, Section 14 deals with passage of time and provides:

"A person's extradition to a category 1 territory is barred by reason of the passage of time if, and only if, it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence or since he is alleged to have become unlawfully at large, as the case may be."

15. The warrant in this case shows that the appellant was convicted at Boulogne of two offences contrary to French law. The first offence was aiding and abetting the forgery of credit cards, using forged credit cards for payment and withdrawal of cash. The second offence was the receiving of stolen cars, stolen in Great Britain, and each is contrary to the provisions of the French penal code set out in the warrant.
16. The conduct set out in the warrant is as follows, so far as material. I am reading from a translation of the French. I am not sure who was responsible for the translation, but it will explain any infelicities in the language:

"By the end of the year 2001, the French Police Force in Calais broke up a tobacco smuggling organisation well structured. Part of the smuggled tobacco was imported from Luxembourg, failing in such a way to pay the relevant Customs excises .....

For their needs, they were also using British stolen cars with faked plate registration numbers in France, by the mean of a method called 'Doublette' [double use of plate] consisting in locating real plate registration number and applying it to a vehicle with the same trademark and design, including sometimes a vehicle of identical colour.

The enquiries made within the context of a preliminary investigation show that this organisation was headed by two persons: Susan Douglas and John Mitchell.

Susan Douglas staying at a hotel in Calais, under a false identity, was the person managing this business in France, acting on behalf of John Mitchell, also known as 'Nudge'. The latter, living in Great Britain and rarely crossing to France, entrusted Susan Douglas with the care of centralising the money, managing the smugglers working for this organisation and paying the expenses for hotels, bars, 'Gites' [French farms used as BB accommodation]. But such an organisation was handling many vehicles for the tobacco and credit card smuggling, and it appeared that John Mitchell was the person providing the cars stolen in Great Britain."

17. It goes on to describe the method of putting false number plates on those cars. It continues:

" ..... under instructions from John Mitchell, the stolen cars were taken to France. Many cars used by this criminal organisation for the tobacco smuggling were found. The cars parked in a car park in Calais were placed at the disposal of the smugglers instructed by Susan Douglas. The keys of the cars put in an envelope and left at the hotel desk where Susan was staying.

Only the damage worked out for using forged credit cards is amounting to €15,000.

John Mitchell is particularly accused of:

1 being the principal offender of this organisation; giving forged credit cards to smugglers living in France, in order to pay the expenses relating to this traffic and taking a part in the tobacco smuggling that was then exported to Great Britain.

2 giving instructions to smugglers for crossing to France the cars previously stolen in Great Britain.

In the case in point John Mitchell is accused of aiding and abetting in the offences committed, insofar as he is blamed for being the principal offender in this organisation, for giving to his smugglers the forged credit cards indispensable for buying and financing this smuggling to Great Britain. He is also accused of exercising his authority over the different smugglers of this organisation by giving them instructions to commit these actions. He is also accused of receiving stolen goods/properties used under his control, previously stolen in England and taken to France and with false plates. His bad faith is enough demonstrated by his actions with regard to the stolen cars equipped with false plate registration numbers."

18. So far as that is concerned, it is Mr Newman's submission, on behalf of the appellant, that it is not shown that any part of the alleged offences was committed in France, thus they did not amount to extradition offences. He has made the point that the cars were stolen in England. The appellant seems, on the French case, to have been responsible for organising that theft, and in those circumstances it is quite impossible to say that he could also be involved in the receiving of those cars. It would have been as if he had been caught speeding in France and was then charged - because he was using the cars - with receiving them or indeed, I suppose, stealing them. That, Mr Newman submits, is wholly wrong.
19. The reality is, as I see it, quite different. What was alleged against Mr Mitchell was that he was aiding and abetting the dishonest receipt of those cars by those who were to use them for the purpose of smuggling in France. Whether actually stolen in this country is irrelevant. It may be that he was directly involved; it may be that he simply made use of agents and did not concern himself with precisely where they came from. Whatever may be the true position, the fact is that he was, on the French case, aiding and abetting their dishonest receipt in France. As it seems to me, it would be no bar to a prosecution for receiving in those circumstances in this country that he was also involved in the earlier theft of those vehicles.
20. The same principle applies to the credit cards. It may well be that he was responsible for the organisation whereby those stolen cards were obtained. They were despatched to France; they were there received by and used by the various minions who were employed to undertake the smuggling enterprise. It is not, in the case of the credit cards, that he was receiving them. The offence was making use of them in France. It would be, in this country, open to the prosecuting authority to charge not only the theft of a credit card but the subsequent dishonest use of that card as a separate offence. There is no question but that the receiving of the cars and the use of the credit cards took place in France.
21. For that reason, for my part, I reject the argument that there was no part of the conduct committed in France.
22. It is also suggested that the description of the conduct was misleading in that, in reality, the extradition was sought for the tobacco smuggling operation. Certainly that is referred to in the description of the conduct because that is what the dishonesty involved in the receiving of the motor cars and the use of the stolen credit cards was for. It was to enable the tobacco smuggling to take place.
23. So far as the French were concerned, the actual smuggling of the tobacco into the United Kingdom was not their direct concern. What was their direct concern was the dishonest use of the cards and the dishonest receiving of the cars in France. That is why, no doubt, they prosecuted and convicted the appellant of those offences. Equally it was no concern of the authorities in this country how the appellant organised the cigarettes to get to the border between France and England. They were concerned only with the observations that took place in this country upon the lorries that were used to smuggle those goods. Therefore the theft of the cars and the theft of the credit cards formed no part of any of the evidence before the jury in the Crown Court at Maidstone. It simply was not a matter that was material. Nor indeed does it appear that the British authorities had any evidence of what precisely was happening in France.
24. Certainly there does not seem to have been direct liaison between the British authorities and the French authorities in Boulogne because these two parallel trials were taking place. Although we have no direct evidence one way or the other, it does not appear that the one was entirely aware of what the other was doing. Certainly there is no possibility that it could be said and established that there was any question of bad faith here, whether by the British or the French authorities, and Mr Newman did not so suggest although that interpretation had been placed upon some of the submissions that had been put in the skeleton argument by Miss Scott. Mr Newman confirms that that is not part of his case.
25. The next question is whether there has been an offence against the rule of double jeopardy so that there is a bar to extradition on that ground.
26. Mr Newman submits that double jeopardy in this context is not to be limited to what in this country would have been technical rules of autrefois acquit or autrefois convict. It is wider than that and covers conduct that would make it an abuse of the process to continue with any particular prosecution. That it is to have that wider meaning is clear from the decision of this court in Fofana and Belise v Deputy Prosecutor Thubin, Tribunal de Grande Instance de Meaux, France [2006] EWHC Admin 744. My Lord, Lord Justice Auld, gave the lead judgment in that case and confirmed that double jeopardy did have that extended meaning. It is important perhaps to note that on the facts of that case there had been proceedings in this country, and proceedings were contemplated in France in relation to a fraud. It seems that the authorities in this country - the CPS - were aware of what was intended in France and that there was a wider basis for approaching the case against the appellants than was actually decided upon in this country because what happened was that a charge was brought in this country of an act which was one of the overt acts of the general dishonest conduct in which the defendant was allegedly involved.
27. In his conclusions on the main issue of double jeopardy, my Lord said this at paragraph 26:

"26 The contemplated French proceedings for a continuing offence of fraud against Serviware, of which the two fraudulent transactions could be regarded as overt acts, concern a longer and more serious course of criminality than the second of them to which the Southwark indictment was confined. Prosecution in France for such a continuing offence would not, of itself, offend against the double jeopardy rule. In the recent case of Boudhiba v Central Examining Court No 5 of the National Court of Justice, Madrid, Spain [2006] EWHC 167 (Admin), to which Mr Caldwell referred the Court, Smith LJ, with whom Newman J agreed, accepted that the Spanish authorities might prosecute the appellant for wide-ranging offences concerning the forgery of passports, despite his conviction in this country for an offence of using a particular passport. She did not find it to be an abuse of process that the offences to be prosecuted in Spain were of a more serious nature, and observed that it would be appropriate for the evidence supporting the conviction in this country to be led in Spain in support [of] any prosecution there for the wider forgery offences.

27 However, in the circumstances of this case the contrast in extent and seriousness between the two sets of proceedings, the extradition criminality confined, as Mr Caldwell acknowledged, to fraud against Serviware, would not be so great. A hypothetical attempt to prosecute both men again in this country on a broader charge based on both Serviware transactions, would, in my view, be vulnerable to the court directing a stay as an abuse of process. The only significant addition to the June 2005 Serviware conduct giving rise to the Southwark indictment would be the almost identical conduct described in the Warrant against Serviware a year before, albeit subject to some confusion in that instrument as to the relative values of the two transactions. The case is clearly distinguishable on its facts from that considered by Smith LJ and Newman J in Boudhiba."

28. I have referred to those two paragraphs because they give a good illustration of the approach that the court ought to adopt in cases such as this where double jeopardy, in the extended meaning of that term, is relied on.
29. In this case the conduct in France covers the period September to December 2001. It is to be noted that the French believe that the police had broken up a tobacco smuggling organisation. It is clear that they did not stop the tobacco smuggling but there is no reason to believe that it necessarily carried on in precisely the same way as in the Autumn of 2001.
30. Certainly Mr Mitchell was involved in May 2002 in a smuggling of tobacco. He was sentenced on the basis that - notwithstanding his acquittal on the conspiracy charge - he was regarded as a principal in the enterprise of the smuggling; indeed he had organised it. The use of the stolen credit cards and the use of the motor cars was something that was peculiar to France and were offences not reflected in anything that had been, or was likely to be, charged in this country. It seems to me that overall it cannot be said that there is such an overlap between the case as presented in this country and that presented in France as to make it an abuse for the French proceedings, had they been alleged in this country, to have been pursued.
31. In those circumstances having regard to those distinctions, I am persuaded that the argument that there is here double jeopardy cannot succeed.
32. That leads me on to the question of delay. Delay was not a point which was raised before the district judge but that of course does not mean that it cannot be raised and considered by this court. The relevant delay in accordance with Section 14 is delay since the appellant has been unlawfully at large; that would be since June 2003. It must be remembered that when dealing with delay it is only a bar to extradition if it appears to the court that it would be unjust or oppressive to extradite by reason of the passage of time. Mr Newman makes the point that were he now to be returned it would be some 6 years or so since the commission of the offence and he would be in some difficulty, because of that lapse of time, perhaps in locating witnesses or producing the necessary evidence to challenge the matter. It is, of course, open to him to seek from the French court a re-trial because he was not present at the original trial. He clearly had a good excuse for not being present at the original trial because he was in custody in this country and being tried in this country.
33. Furthermore even if he decides not to challenge the convictions, it will be open to him to seek to have the sentence reduced and put forward any mitigation that he considers it appropriate to present to the French court. It may well be that the French court will inevitably take into account the fact that he has served a sentence of imprisonment, albeit not for the conduct on the same occasion but for conduct which involved the smuggling of cigarettes into the United Kingdom. That was clearly a matter which the French had in mind in dealing with the offences which were before them. It is referred to in the warrant and referred to as part of the conduct in question.
34. The French court, we must assume and we certainly have no evidence to the contrary, will deal with questions such as delay in a proper manner. France, after all, is a signatory to the European Convention on Human Rights and will have regard to the provisions of Article 6 insofar as they are material. In addition, it is, as a signatory to the European Arrest Warrant System, to be expected to provide the necessary safeguards to ensure that a defendant before it will receive a fair trial. There is no question that any particular period of time provides a threshold in relation to Section 14. The important thing to remember is that it is only if it would be unjust or oppressive. It seems to me that in those circumstances it is necessary for an appellant to produce some evidence from which the court can conclude that it would be unjust or oppressive.
35. It is quite insufficient, in my judgment, to say simply there has been a lapse of time therefore it inevitably will make things more difficult. That is not sufficient, unless it may be that the lapse of time is so great that anyone would recognise the impossibility of preparing a proper defence. It is necessary to produce some evidence, and there is none here, which in any way indicates that it would be unjust or oppressive to return him.
36. In those circumstances and for the reasons I have given I would dismiss this appeal.
37. LORD JUSTICE AULD: For the reasons given by my Lord, I, too, dismiss the appeal.
38. MR NEWMAN: I have spoken to my friend. May I invite your Lordships to continue the appellant's bail, perhaps adding one further condition? He has a condition of reporting to the police.
39. LORD JUSTICE AULD: One other condition?
40. MR NEWMAN: Yes, one other condition namely to report to the police when required for the purposes of extradition.
41. LORD JUSTICE AULD: What other conditions are there?
42. MR NEWMAN: He has to report three times a week at the police station and there is a condition of residence. The Crown are quite happy not to oppose this application.
43. MR JUSTICE COLLINS: Is there anything in the Act which deals with the situation now that the appeal has been dismissed?
44. MR NEWMAN: No. The only thing there is in the Act is where the reverse happens, where the appellant is discharged. Unless the court took precautions, the extradition warrant would lapse, but no.
45. MR JUSTICE COLLINS: The result lies automatically. The appeal having been dismissed, the Secretary of State would issue a warrant and - - - - -
46. MR NEWMAN: Subject only to the perhaps academic possibility of a further appeal to the House of Lords, yes. There is something like a month which occurs because I do not think it can take - - it is 14 days to appeal and 10 days after that. The prosecution do not object.
47. LORD JUSTICE AULD: Miss Scott, that is right, is it? You do not object to this further; it seems to be a condition to give the police greater discretion as to the reporting requirement, time and place.
48. MISS SCOTT: I would invite that condition.
49. LORD JUSTICE AULD: You had better draw it up in appropriate form to be incorporated into the court's order, to be clear in its terms not least to the appellant. Are there any other consequential applications?
50. MISS SCOTT: No.
51. LORD JUSTICE AULD: We are grateful to Mr Newman and Miss Scott for the assistance you have given and to those behind you.
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